Why are India’s lower courts so reluctant to grant undertrials bail?

On November 20, Chief Justice of India DY Chandrachud said that there is a “sense of fear” among district judges that “nobody talks about”. According to him, these judges are apprehensive that they may be targeted for granting bail in heinous cases.

Chandrachud said this fear needs to be addressed, otherwise the trial courts would be rendered “toothless” and higher courts “dysfunctional” because of a barrage of pending bail applications. The next day, Bombay High Court Chief Justice Dipankar Dutta echoed these views.

Even though bail is supposed to be the rule and jail an exception, this principle is not followed in practice. Courts, especially trial courts, are slow to grant bail, resulting in three out of every four prisoners being undertrials. A majority of these prisoners may not required to be imprisoned.

While trial courts also have the power to grant bail, they are given less protection when compared to higher courts and are more prone to inquiries and suspensions. Thus, trial judges are apprehensive about granting bail. Further, in many cases, higher courts may pass adverse remarks against trial court judges or overturn their orders, which can often halt their career progression.

Bail in India

Granting bail is a discretionary power given to courts. While Supreme Court, High Courts and sessions courts have no fetters in granting bail (except in special laws, such as the Unlawful Activities (Prevention) Act, 1967) magistrate courts (which can try limited cases and only impose a maximum imprisonment of seven years) have to conform to some conditions when it comes to granting bail.

Section 437 of the Code of Criminal Procedure says that for crimes that carry a death sentence or life imprisonment, a magistrate’s court cannot grant bail unless it has reasonable grounds to believe that the person is not guilty of committing such an offence.

Sessions courts and magistrates courts are collectively referred to as trial courts or the district judiciary.

The primary purpose of incarceration is to ensure that the accused person is present during the trial and does not hamper the investigation. Thus, one reason why bail is not granted by trial courts is that the investigation is at an early stage when a bail application reaches them.

However, the Supreme Court has held that in offences that carry a punishment of less than seven years, an accused person should not ordinarily be arrested.

Still, arrests do happen and trial courts routinely deny bail. So much so that lawyers have coined a term for getting bail rejected by trial courts – “khaarija” or dismissal. They file an application for bail in a trial court expecting it to be dismissed and then subsequently approach a higher court for bail.

Allegations galore

Since rejecting bail is the norm, legal experts say that anyone who goes against the principle often attracts attention.

“District judges do not grant bail out of fear, even when a case on merits is made out,” said former Patna High Court judge Anjana Prakash. A judge’s competence is often mistakenly assessed on her tilt towards the prosecution, she said.

Judges who go against this trend can face adverse consequences. “The problem starts when trial courts grant bail and there are allegations that the judge has taken money or granted bail out of extraneous considerations,” said former Allahabad High Court judge, Imtiyaz Murtaza.

These allegations can come from various sources, such as litigants or lawyers in a case. “In a case, there will always be a losing party,” said former trial court judge Bharat Chugh, adding that the one who loses may blame it on the judge being “unfair”. “People may try to file a complaint or a transfer application against a judge,” he said.

While measures, such as insisting on an affidavit along with complaints, are taken to ensure that frivolous complaints are not filed, said Chugh, such complaints can still be used as pressure tactics.

“The High Court receives hundreds of complaints against the lower judiciary every day,” said former Patna High Court judge Prakash.

Even outside the courtroom there is often public pressure to deny bail, especially in heinous crimes. “People often equate bail with an acquittal and that leads to a lot of public pressure,” said Chugh. “And that makes a trial court judge sometimes go a little conservative.”

Action against judges

While judges in High Courts and Supreme Court have constitutional protection and can be removed only by way of impeachment, similar protection is not accorded to the district judiciary. There have been several instances of judges being sent on compulsory retirement for granting bail.

Under Article 235 of the Constitution, the subordinate courts in an area are under the control of the High Courts. A High Court can send a district judge on compulsory retirement or transfer them to another court.

However, even if an extreme step such as retirement is not taken, higher courts may also make an “adverse remark” against a district judge who grants bail, which can prove to be costly for their career.

“Since district judges are also possible High Court judges, they want to play it safe in case their chances are jeopardised,” said Prakash.

The performance of a trial judge is closely monitored by High Courts. They have an annual confidential report where any such adverse remarks are mentioned. In 2019, the Supreme Court noted that such adverse remarks will be “taken into consideration while considering career progression of the concerned judicial officer”.

One retired high court judge, who did not wish to be named, said that judicial officers are cautioned during their training that they will attract bad press if they give bail liberally.

Other ways exist in which district courts are prone to interference, and thus they might not want to grant bail. “Large number of judicial officers also go on deputation to government departments,” said Supreme Court advocate on record Talha Abdul Rahman. “If you are not pro-government, then you may not get a posting.”

Inconsistent signal

Apart from taking action against district judges, higher courts influence the district judiciary’s actions by frequently overturning bail decisions.

“Inconsistent signals are given,” said former Allahabad High Court judge Amar Saran. “While on one hand, judges say in seminars that bail should be granted liberally, but on appeals, courts often reverse trial courts’ bail orders often for minor technical offences.” Saran said that this may be due to reasons such as the trial judge not writing a good bail order, despite the facts meriting bail.

It may also be a matter of power play on the higher judiciary’s part. “Often times I sensed the High Court judges also drew lines and believed the powers of the sessions judges were lesser,” said Prakash, despite there being no such stipulation in law. “I personally suspect that it is a reflection of the need to assert superiority.”

There are other ways in which higher courts restrict a trial court’s ability to grant bail. In certain cases, constitutional courts may interpret provisions to grant bail very narrowly.

“For instance, you have the Supreme Court case of Watali which made it next to impossible to get bail in Unlawful Activities Prevention Act cases,” said Delhi-based criminal lawyer Gautam Khazanchi. “It is only when higher courts interpret the bail law widely, trial courts will actually grant bail in these offences.”